In a one-sentence decision, an equally divided United States Supreme Court affirmed the Ninth Circuit’s ruling in Friedrichs v. California Teachers Association, which upheld the right of states to compel public employees who choose not to join unions to pay “agency fees.” “Agency fees” are an equal portion of bargaining costs related to wages, benefits and working conditions. The 4-4 split follows the recent death of Justice Antonin Scalia.

Plaintiffs in this California-based lawsuit, including 10 California public school teachers, sought to overturn the Supreme Court’s 1977 decision in Abood v. Detroit Board of Education, which held that state laws compelling public employees to financially support collective bargaining costs does not violate the First Amendment.

The Supreme Court’s decision does not impose any new obligations on public employers with respect to agency fees. Rather, existing agency agreements with employee unions remain legal.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

The California Department of Education (CDE) recently issued guidance regarding Assembly Bill (AB) 1266. This bill, effective January 1, 2014, amended the Education Code to require that students be permitted to: (1) participate in sex-segregated school programs and activities, including athletic teams and competitions; and (2) use facilities consistent with their gender identity regardless of the gender assigned at birth. The term “gender identity” refers to a person’s gender-related identity, appearance or behavior whether or not stereotypically associated with the person’s assigned sex at birth. Along with its guidance, CDE also issued Frequently Asked Questions that address many of the specific concerns school districts may have with the application of this new law.

If a student would like to participate in sex-segregated school programs or activities or use facilities consistent with the student’s gender identity, CDE encourages administrators and staff to engage in an open dialogue with a student in order to determine whether the student is transgender (e.g., whether that student’s gender identity is sincerely held). If it is determined a student is sincere in asserting his or her gender identity, school districts are required to respect and accept that student’s gender identity when the student expresses that identity at school. Except in rare circumstances, when district administrators believe the student has an improper purpose for asserting his or her gender identity, school districts are prohibited from questioning the student’s assertion of their gender identity. The fact that a student expresses his or her gender identity differently across multiple contexts does not, by itself, discredit a student’s assertion of his or her gender identity. School districts may not require a student to provide a diagnosis, proof of medical treatment, or meet an age requirement, as a condition of receiving the protections afforded to transgender students.

CDE provides extensive guidance for districts regarding transgender students’ privacy rights. Specifically, CDE requires districts to use extreme caution when revealing or discussing a student’s gender identity to others (i.e., parents or guardians of the student) as this may place the student in an unsafe situation. Student safety is a concern in this situation because a transgender student may not openly express his or her gender identity in all contexts, including at home.

Transgender students have the right to keep their transgender status private under federal and state laws. Schools are not permitted to disclose a student’s transgender status to other students, school staff, or parents of other students. A school district’s disclosure of a student’s transgender status, without the student’s permission, may violate California’s anti-discrimination law by increasing the student’s vulnerability to harassment and may violate the student’s right to privacy. Accordingly, school districts are required to consult with transgender students to determine who, if anyone, can or will be informed of the student’s transgender status. According to the CDE guidance, this includes the student’s parents or guardian. The CDE guidance asserts that, except for rare exceptions, schools should not inform parents about a student’s transgender status without the student’s permission. The CDE guidance does not address how a school district would prevent a parent from having access to the student’s records.

CDE provides an exception to the general rules regarding non-disclosure of a transgender student’s status, permitting districts to reveal this information only to essential persons when necessary to protect the health or safety of the student or others.

CDE recommends districts keep records regarding a student’s transgender status separate and apart from that student’s school records (e.g., records that reflect the student’s biological name and gender at birth) in order to prevent improper disclosure in violation of the student’s privacy rights. School districts should maintain a permanent student record for each student which reflects that student’s legal name and assigned gender. School districts should only change these records when they receive documentation indicating that a student’s legal name or gender have changed. However, all members of the school community are required to use the student’s name and pronouns consistent with the student’s gender identity, regardless of whether the student has legally changed his or her name or gender. A student’s or teacher’s consistent refusal to use the proper name or pronoun to address a transgender student may constitute harassment.

Pursuant to the CDE guidance, school districts are required to permit transgender students to use school facilities (i.e., restrooms, changing rooms and showers) consistent with the student’s gender identity. A school district is prohibited from requiring a transgender student to use a separate restroom or private changing area. Requiring a transgender student to be singled out by using separate facilities is not only a denial of equal access, but may violate the student’s right to privacy by disclosing the student’s transgender status or causing others to question why the student is being treated differently. A “gender neutral” restroom or private changing area, if available, may be used by any student who desires increased privacy, regardless of the underlying reason. This “gender neutral” facility should be made available in a manner that protects the gender identity of the students who use it.

CDE requires school districts to provide transgender students with the same opportunities as all other students to participate in physical education and sports consistent with their gender identity. Whenever students are separated by gender in school activities or subject to an otherwise lawful gender-specific rule, policy or practice, students must be permitted to participate in such activities or conform to such rule, policy or practice consistent with their gender identity. Similarly, transgender students are required to comply with the dress code consistent with their gender identity. A school dress code may not be enforced more strictly against a transgender student compared to other students.

CDE also requires school districts to have policies and procedures for handling complaints of harassment against transgender students. School districts must investigate such incidents and implement appropriate corrective action in order to prevent such incidents from reoccurring.

In order to ensure compliance with AB 1266, school districts should review all policies to ensure that gender-based policies have a clear and sound pedagogical purpose. Specifically, CDE cautions school districts against using some gender-based policies (i.e., gender-based dress code for graduation or senior portraits, asking students to line up according to gender, etc.).

Lozano Smith attorneys are available to provide guidance regarding transgender student issues and the impact of the new CDE guidance.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Two recent cases involving high profile public officials highlight the reach of Government Code section 1090. Government Code section 1090 prohibits conflicts of interest, self-dealing and corruption among public entity officials.

Sweetwater Union School District v. Gilbane Building Company (February 24, 2016) 245 Cal.App.4th 19, sprang from one of the largest political corruption scandals in San Diego County history, in which construction vendors provided gifts to school district board members as incentives for the award of construction management contracts. Among other things, vendor representatives paid for expensive dinners with District officials, provided tickets to entertainment and sporting events, paid travel expenses, and made contributions to political campaigns and charities in an effort to influence the District’s award of construction management contracts. District board members and vendor representatives pled guilty to various crimes associated with this “pay to play” scheme.

The District sought to void three construction management contracts under Government Code Section 1090, and demanded that the vendors awarded those contracts disgorge all monies paid under the void contracts. In response, the vendors filed an anti-SLAPP motion challenging the District’s Section 1090 claim. “SLAPP” refers to a “strategic lawsuit against public participation” — that is, a lawsuit brought primarily to “chill”, or prevent, the valid exercise of constitutional rights to challenge unlawful conduct. An “anti-SLAPP motion” refers to the procedural mechanism a defendant may use to challenge that “chilling” lawsuit as an alleged infringement of the defendant’s free speech rights. A court faced with an anti-SLAPP motion must engage in a two pronged analysis. First, the court decides whether the defendant made a threshold showing that plaintiff’s claim is one arising from protected activity. However, a defendant cannot meet this showing if its alleged protected activity is illegal as a matter of law. Second, if the defendant clears this initial hurdle, the court then analyzes whether the plaintiff has demonstrated a probability of prevailing. If the plaintiff meets that burden, the anti-SLAPP motion will be denied.

The trial court held that the vendors’ anti-SLAPP motion could not meet the first element, finding that the conduct underlying the complaint was illegal as a matter of law.

On appeal, however, the Sweetwater court disagreed with the trial court’s finding on the first element, concluding that the vendors could show that their claim arose from constitutionally protected activity, namely that making political contributions and lobbying government officials is a type of political speech. The appellate court also held that although the District introduced evidence that many of the individuals entered guilty or no contest pleas to certain criminal activity, none of the individuals pled guilty to Section 1090 violations. The Sweetwater court found that “while the evidence may establish that some of the conduct may have been illegal, the evidence does not establish that all of the conduct at issue was illegal as a matter of law.” (Emphasis in the original.)

The Sweetwater court next turned to the second element of an anti-SLAPP motion, finding that the evidence the District proffered confirmed that the District had a probability of prevailing on the merits of its Section 1090 claims. While there was no allegation that any official stood to gain economically from the contract performance, it was clear they had a financial interest in the relevant contracts as a result of activities that occurred during the contracting process and in the making of the contracts. For example, testimony of those convicted and testimony of other individuals knowledgeable of the facts showed that the gifts and contributions were made for the purpose of swaying District officials’ votes in favor of awarding contracts to the vendors. Thus, one could reasonably infer from the chronology of campaign contributions and excessive gift giving, together with the award of the contracts, that the former District officials were influenced to award contracts to the vendors as a result of the gifts and contributions. Accordingly, because the District showed facts sufficiently demonstrating a probability of prevailing on its Section 1090 claims against the vendors, the District defeated the anti-SLAPP motion and the case continued.

In another case involving Government Code section 1090, a former school district superintendent in San Diego County recently pled guilty to a felony charge for bonuses he received tied to the approval and authorization of charter schools. Steve Van Zant served as the Superintendent of the Mountain Empire School District (San Diego County) from 2008 through 2013. Beginning in 2010, Mr. Van Zant’s contract awarded him a stipend for each charter school that the District authorized. The stipend was equivalent to five percent of the revenue generated by the charter authorization. Once authorized, a handful of the charter schools subsequently hired Mr. Van Zant’s private consulting firm to provide administrative services.

In January 2016, the San Diego District Attorney’s office filed a felony charge against Mr. Van Zant alleging that his actions violated Government Code section 1090’s conflict of interest provisions. While unwilling to provide specific details, the District Attorney noted that Mr. Van Zant violated section 1090 on or around May 12, 2010 (the date Mr. Van Zant’s stipend incentive was adopted). On February 26, 2016, Mr. Van Zant pled guilty to the felony charge. As part of his plea agreement, Mr. Van Zant agreed to return the stipends he received for authorizing the charters, 5 years’ probation, 300 hours of community service, and 30 days home confinement.

These two cases illustrate that seriousness of Government Code Section 1090’s conflict of interest provisions, and demonstrate the very real potential of penalties for a violation. If you have any questions about these cases or Government Code section 1090, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

If a public agency accidentally discloses privileged attorney-client information when it responds to a Public Records Act request, does the agency waive the attorney-client privilege? The answer is no, according to a California Supreme Court ruling issued today, March 17, 2016. The decision significantly impacts how public agencies throughout the state handle Public Records Act requests.

In Ardon v. City of Los Angeles, the California Supreme Court resolved conflicting rulings by courts of appeal on the proper interpretation of a provision of the Public Records Act, Government Code section 6254.5, which provides in relevant part:

Notwithstanding any other provisions of law, whenever a state or local agency discloses a public record which is otherwise exempt from this chapter, to any member of the public, this disclosure shall constitute a waiver of the exemptions specified in Section 6254, 6254.7, or other similar provisions of law.

The California Supreme Court reversed a decision by the Second District Court of Appeal, which had held that the City of Los Angeles waived the attorney-client privilege as to documents the City mistakenly disclosed to a taxpayer, who was also the plaintiff in a pending lawsuit against the City. In response to a Public Records Act request made by the plaintiff, the City handed over 53 pages of documents, three of which were privileged and previously withheld when the plaintiff requested them in litigation. The City requested return of the privileged documents two months after their production when the requesting party’s attorney notified the City that the documents were produced. The Ardon Court of Appeal concluded that because “the City has disclosed the documents to one member of the public,” that it “was prohibited as a matter of law from ‘selectively withholding’ that document from any other member of the public.” Furthermore, according to the Ardon Court of Appeal, the plain language of section 6254.5 dictated a waiver because the law contained nine explicit exceptions to waiver, but did not include documents handed over by mistake or inadvertence.

Rejecting the decision of the Ardon Court of Appeal, the California Supreme Court followed the First District Court of Appeal in Newark Unified School District v. Superior Court (Newark). Lozano Smith successfully represented Newark Unified School District in this litigation, including before the Court of Appeal (See Client News Brief No. 42, August 2015). In contrast to the Ardon Court of Appeal, the Newark Court of Appeal held that a school district did not waive the attorney-client privilege when its employee accidentally gave privileged information to the requesting party. The California Supreme Court agreed, reasoning in Ardon that the Legislature could not have possibly contemplated that the mistaken release of privileged information would waive the attorney-client privileges, especially given the Public Records Act’s safeguards for private, sensitive information of citizens that are in the hands of the government. Rather, the law focused on preventing intentional and selective disclosures by a public agency. Citing to Newark‘s discussion of the law’s legislative history, the California Supreme Court stated: “When a release is inadvertent, no selection occurs because the agency has not exercised choice in making the release. It was an accident. Accordingly, an inadvertent release does not involve an attempt to assert the exemption as to some, but not all, members of the public, the problem section 6254.5 was intended to address.” Like the Newark Court of Appeal, the California Supreme Court further reasoned that Evidence Code section 912 and the importance of the attorney-client privileges repudiate “the ‘gotcha’ theory of waiver, in which an underling’s slip-up in a document production becomes the equivalent of actual consent.” Indeed, one further point made by the California Supreme Court is the impracticality of such a rule: “the logistical problems public entities can face in reviewing, in some cases, even thousands of pages of records responsive to a public records request . . . is daunting. It would be foolish to believe that human errors in the processing of public records requests will cease . . . .”

It is important to emphasize that the California Supreme Court in Ardon, like Newark, presumed that a public agency’s mere assertion that a mistaken release of documents could be challenged and a trial court would examine all the relevant circumstances to determine waiver. “This holding applies to truly inadvertent disclosures and must not be abused to permit the type of selective disclosure section 6254.5 prohibits,” the California Supreme Court stated. Moreover, in some circumstances, it may not matter whether or not a public agency can show that it released documents by mistake. Public agencies must take note of the caveat in the Newark decision, that a member of the public could prove the distribution of privileged documents reached a point that would make a court order to return the documents hard to enforce. Newark specified that trial courts would have to make a determination on a case-by-case basis; in Newark, there was no evidence of such a wide and irretrievable distribution and the school district employee quickly put the requesting party on notice of the accidental disclosure of privileged documents and demanded their return. This “Newark notice” appears a prudent step by public agencies that would seek a court order to return privileged documents disclosed by mistake.

In October 2015, the California Supreme Court granted review of the Newark decision, but effectively stayed its review pending the outcome of Ardon. Today, the California Supreme Court ordered the Newark decision published and noted that order in its Ardon decision, meaning that the case is good law to be relied upon by public agencies statewide.

If your public agency has any questions regarding the Ardon or Newark opinion or the Public Records Act in general, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

The Department of Industrial Relations (DIR) recently announced that it has temporarily suspended enforcement of its requirement that contractors submit their certified payroll records (CPR) electronically. This electronic system (“eCPR” system) was intended to take the place of contractors submitting paper copies of their records, but the eCPR system is not working as expected. Even though the DIR has suspended the eCPR system for the time being, contractors are still required by Labor Code section 1771.4 to submit their CPR to DIR at least monthly. As a result, questions have been raised as to where and how contractors are to file their CPR.

The CPR submittal requirement is part of Senate Bill 854 (SB 854) which introduced this requirement so that the DIR could monitor whether prevailing wages are being paid on public works projects. SB 854 also added the contractor registration requirements and related provisions as described in an earlier Lozano Smith news brief (see Client News Brief No. 43, July 2014). The Labor Commissioner announced last year that contractors would have to submit their CPR to the DIR through the eCPR system.

Although DIR has suspended the eCPR system, it has not provided guidance as to how contractors should submit their CPR to the DIR in the meantime. Nothing in the language of SB 854 or recent DIR notices requires public agencies to accept the CPR from contractors as a substitute for the eCPR system. Instead, contractors remain obligated to maintain CPR and to provide them upon request, as provided in Labor Code section 1776. The DIR reports that the eCPR upgrades should be completed by June 2016. Hopefully, the eCPR system will be back in operation in time for the peak of the summer construction season.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

April 1 is the deadline for those holding “designated positions” under their agency’s Conflict of Interest Code (Code filers), as well as so-called “Section 87200 filers,” to file the annual Statement of Economic Interests (Form 700). Section 87200 filers include mayors, city council members, city managers, city attorneys, city treasurers, members of planning commissions, members of the board of supervisors, district attorneys, county counsels, county treasurers, county chief administrative officers, other public officials who manage public investments, and candidates for any of these offices at any election. The Political Reform Act (Gov. Code, §§ 81000-91014) requires those public officials and employees to disclose on Form 700 certain investments, interests in businesses and real property, and sources of income, as well as certain gifts that were received in the previous 12-month period which exceed designated dollar amounts. School districts, cities, counties, and other public agencies are required to adopt a conflict of interest code which, at a minimum, includes the terms of Government Code section 87300, and the related regulations.

If a Code filer or Section 87200 filer receives a gift or gifts totaling $50 or more from a single source in the previous calendar year, then the gift or gifts must be disclosed on the Form 700. (Gov. Code, § 87210) The filers may not receive gifts totaling more than $460 (for 2015-2016) in any calendar year from a single source if they would be required by their agency’s Code or Section 87200 to report income or gifts from that source on Form 700. (Gov. Code, § 89503; Cal. Code Regs., tit. 2, § 18940.2)

The Political Reform Act includes a broad definition of a “gift”: anything of value that is received by a public official or employee for free or at a discount and which is not otherwise made available to members of the general public. This could include meals, tickets to concerts or sporting events and some forms of travel. There are some limited exceptions for gifts that are exchanged for holidays, birthdays and similar occasions, gifts received from relatives and informational materials that primarily convey information and are provided to assist the recipient in the performance of his or her official duties. (Cal. Code Regs., tit. 2, §§ 18942, 18942.1) Because the reporting of gifts and other conflict of interest issues have drawn particular scrutiny and media attention recently, including a few high-profile enforcement actions, particular care should be taken to comply with the rules.

Under the Political Reform Act, required filings such as Form 700 must be open for public inspection and reproduction during a public agency’s regular business hours. Although these disclosure requirements are similar to the Public Records Act, there are separate rules that apply. (Gov. Code, § 81008)

If you have any questions regarding the Political Reform Act’s rules on gifts, when reporting is required, or updating your agency’s conflict of interest code, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

In July 2015, the Court in Morgan Hill Concerned Parents Ass’n v. Cal. Dep’t of Educ. (E.D. Cal. January 26, 2016) Case No. 2:11-cv-3471, 2016 U.S. Dist. LEXIS 8952, issued an order that would require the California Department of Education (CDE) to release student data in its possession of as many as 10 million current and past public school students. This data would include sensitive information such as social security numbers. The Court also opened the door to objections by individual students and parents. In response to the overwhelming number of objections being received, the Court on March 1, 2016, modified its previous protocol for the release of student’s data to the parties in the litigation. The Court’s modified order still will allow for the release of student information, but through the CDE, rather than in direct disclosure to the plaintiffs in the case. This will likely protect items such as social security numbers. However, media reports regarding the limitations on what will now be released have been inconsistent and inaccurate. The purpose of this communication is to provide a summary of what the Court’s modified order actually does.

Previously, the Court had provided the plaintiffs’ attorneys two options for obtaining student’s data from the California Longitudinal Pupil Achievement Data System (CALPADS) database maintained by the CDE. In Option 1, plaintiffs would receive a copy of the CALPADS database, whereas in Option 2, CDE would maintain custody of the CALPADS data but would facilitate the running of searches of the data to meet plaintiffs’ discovery needs. In other words, in Option 1, the plaintiffs would directly receive all of the student data, including information such as social security numbers. In option 2, the CDE would mine or search the data and provide it to the plaintiffs, such that the CDE would not provide plaintiffs with the entire file or database.

In the new order issued on March 1, 2016, the Court removed Option 1. Instead, with respect to the CALPADS database, only Option 2 will be available. Therefore, the CALPADS database will remain solely with the CDE and the CDE will have to assist plaintiffs’ attorneys seeking evidence form the CALPADS base.

Initial news reports stating that records of special education students will be disclosed to plaintiffs while other students’ information will not, do not appear to be correct. The Court’s March 1, 2016 order does not treat the records of special education and general education students differently.

Also, the Court’s previously issued protective order remains in place. The protective order prevents any party from disclosing confidential information acquired in the course of the lawsuit, including student records, to anyone other than the parties, their attorneys and consultants, and the Court, and the information will be destroyed or returned to the CDE after the case is concluded. Additionally, the protective order provides that no student’s identifying records will be disclosed to the public.

In addition, the order does not modify the Notice of Disclosure of Records under the Family Educational Rights and Privacy Act (FERPA) (available online here) and parents who object to the disclosure of their child’s protected personal information and records may submit a written objection or letter to the Court. The deadline for submitting the objection is April 1, 2016.

The Court’s March 1, 2016 order noted that the Court has received a significant number of objections from parents already, although the submittal deadline is not until April 1. The order intimates that the large volume of objections is at least part of the reason for the modification of its previous order. The Court’s order states that given the volume of objections received, the Court cannot realistically review the objections individually. However, the order stops short of directing parents not to file an objection at this point in time. Instead, the order notes that all objections received in response to the previous FERPA Notice will be stored in sealed boxes in a secure room and will be noted in the Court’s docket as ‘Lodged Under Seal’.

We will provide further updates on relevant items related to this matter as this litigation progresses. If you have other questions in the meantime, please
contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.